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Gardenhire v. Manville

United States District Court, D. Kansas

February 2, 2017




         I. Background

         Plaintiff Jimmy Gardenhire brings this employment action against his former employee, Johns Manville. Plaintiff alleges that defendant failed to provide him with reasonable accommodations in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Plaintiff also alleges that defendant retaliated against him for exercising his rights under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq, and interfered with his FMLA rights when it failed to restore him to his job. Finally, plaintiff alleges that defendant discriminated against him on the basis of race in violation of Title VII, 42 U.S.C. § 2000e et seq. This matter comes before the court on defendant's Motion for Summary Judgment (Doc. 35). Plaintiff responded (Doc. 39) and defendant replied (Doc. 43). For reasons explained below, the court grants defendant's motion.

         II. Legal Standard

         Summary judgment is appropriate if the moving party demonstrates that “no genuine dispute [about] any material fact” exists and that it “is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When applying this standard, the court views the evidence and draws inferences in the light most favorable to the non-moving party. Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). A disputed “issue of fact is ‘genuine' ‘if the evidence is such that a reasonable jury could return a verdict for the non-moving party' on the issue.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An “issue of fact is ‘material' ‘if under the substantive law it is essential to the proper disposition of the claim' or defense.” Id. (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).

         The moving party bears “both the initial burden of production on a motion for summary judgment and the burden of establishing that summary judgment is appropriate as a matter of law.” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (quoting Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002)). To carry this burden, the moving party “need not negate the non-movant's claim, but need only point to an absence of evidence to support the non-movant's claim.” Id. (quoting Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1125 (10th Cir. 2000)).

         If the moving party meets its initial burden, the non-moving party “may not rest on its pleadings, but must bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Kannaday, 590 F.3d at 1169 (quoting Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Anderson, 477 U.S. at 248-49. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. “Factual disputes that are irrelevant or unnecessary will not be counted.” Id. Further, “the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at 671 (citing Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992)). “Unsubstantiated allegations carry no probative weight in summary judgment proceedings.” Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (citing Phillips v. Calhoun, 956 F.2d 949, 951 n.3 (10th Cir. 1992)). To survive summary judgment, the non-moving party's “evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise.” Id. (citing Rice v. United States, 166 F.3d 1088, 1092 (10th Cir. 1999)).

         Summary judgment is not a “disfavored procedural shortcut.” Celotex, 477 U.S. at 327. To the contrary, it is an important procedure “designed ‘to secure the just, speedy and inexpensive determination of every action.'” Id. (quoting Fed.R.Civ.P. 1).

         III. Uncontroverted Facts

         Plaintiff filed an affidavit contesting many of defendant's statements of fact. Plaintiff's affidavit includes immaterial information as well as information that contradicts prior sworn testimony in his deposition. The Tenth Circuit has held that courts should “disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham fact issue.” Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986). This is because “the utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting an affidavit contradicting his own prior testimony.” Id. “Factors relevant to the existence of a sham fact issue include whether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain.” Id. These factors convince the court that plaintiff's affidavit should be disregarded in determining the motion for summary judgment. None of the statements in plaintiff's affidavit are based on newly discovered evidence, nor do they attempt to explain confusion from his deposition. Instead, plaintiff's affidavit makes several conclusory statements that contradict his prior testimony in an apparent attempt to create a genuine issue of material fact. Under these circumstances, the court concludes this is an instance, albeit a rare one, where conflicting testimony between the deposition and the affidavit raises only sham issues. Accordingly, the court does not consider these contradictory statements in deciding this motion.

         The remaining relevant and uncontroverted facts are laid out below; where controverted, the facts are stated in the light most favorable to plaintiff as the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

         Defendant Johns Manville manufactures residential and commercial fiberglass insulation. Plaintiff worked for defendant at its McPherson, Kansas plant from 2007 through August 2013. Plaintiff worked as an Inspector Packer.

         Throughout his employment, plaintiff understood that defendant had policies prohibiting discrimination, harassment, and retaliation. Defendant maintained a FMLA policy in its handbook and on its website throughout plaintiff's employment. No one ever showed plaintiff the policy. Nonetheless, plaintiff utilized FMLA leave at least twice while employed by defendant. First, plaintiff used FMLA leave when his child was born. Later, plaintiff used FMLA leave when he became disabled.

         At defendant's McPherson plant, fiberglass material is formed and cured into sheets between 48 inches and 15 to 23 feet long. The length of the sheet depends on the order being filled. Once the sheets are formed and cured, they travel down a conveyor belt and are inspected for quality. Once inspected, the sheets are mechanically wound into rolls. The rolls ranged anywhere from 48 inches 15 to 23 feet long. The 48 inch rolls weighed merely ounces, and heavier products weighed between 15 and 30 pounds. Once wound, the roll continues down the conveyor belt and it is inspected a second time. After it is inspected the second time, each roll is moved manually from the conveyor belt to the encapsulation machine for packaging.

         As an Inspector Packer, plaintiff performed assembly line work on rotating, 12 hour shifts. Generally, Inspector Packers are responsible for inspecting the insulation sheets before and after they are wound, physically moving all insulation rolls into the packing machine, and running the packing equipment. While plaintiff worked for defendant, defendant's written description for Inspector Packers listed the essential job functions of the position. One of these essential functions was “sets aside defective material for disposition by others.” Doc. 36-1 at 19. Plaintiff's job duties thus required him to lift and throw insulation product if it was defective- which could weigh anywhere from 25 to 55 pounds-sometimes with both hands. Plaintiff testified that the material was sometimes lighter, and so he could carry the material with one hand. Id. at 22.

         In 2007, less than three months after plaintiff started working for defendant, defendant allowed plaintiff to use FMLA leave even though he was not yet eligible. Then, in late 2011 and early 2012, plaintiff took additional FMLA leave. Id. at 33-34.

         On December 30, 2012, plaintiff suffered several injuries when he fell at a skating rink, including a broken elbow. On December 31, 2012, Dr. Byron Grauerholz at the Orthopedic Sports Health Clinic of Salina imposed work restrictions on plaintiff, limiting him to light duty, and one-hand jobs. Plaintiff was approved for both FMLA leave and short-term disability leave effective December 31, 2012. The short-term disability leave offered under defendant's policies was for six months and ran concurrently with plaintiff's FMLA leave.

         Plaintiff's work restrictions-imposed on December 31, 2012-were supposed to last for four weeks. But plaintiff's physician had not yet released him from his work restrictions by April 2013. Plaintiff exhausted his FMLA leave around the end of March 2013. On April 17, 2013, Dr. James Bogener at the Orthopedic Sports Health Clinic of Salina wrote a work restriction note stating that plaintiff still was restricted to “light duty, one-handed jobs only, no lifting with the left hand for six weeks.” Doc. 36-1 at 45. Dr. Bogener drafted his April 17, 2013 note, and all subsequent work restriction notes, at plaintiff's request. Dr. Bogener assigned work restrictions based on plaintiff's own reports about his capabilities. On June 5, 2013, Dr. Bogener wrote another work restriction note for plaintiff. It indicated that plaintiff should continue working light duty jobs only, performing only one-handed jobs, and that he should not lift with his left hand for six weeks.

         Plaintiff exhausted his short-term disability leave on June 29, 2013. On July 1, 2013, plaintiff applied for permanent and total disability benefits through The Hartford. When the application asked him to describe what aspect of his condition rendered him unable to work, plaintiff stated that he was too weak in his elbow and back to lift the weight that his job duties required. Doc. 36-1 at 51. When asked what important duties of his job he was unable to perform, plaintiff listed lifting, pulling insulation rolls apart and laying them in the machine, and changing out things where he had to bend his arm forward. Id. at 52. The Hartford denied plaintiff's claim for permanent and total disability benefits. Plaintiff appealed, and The Hartford upheld its denial.

         On July 29, 2013, Shirley Vawter, defendant's Regional Human Resources Manager, sent plaintiff a letter. The letter stated, in relevant part:

I'm sorry over the past several weeks we have not be[en] able to connect on the telephone. I have been trying to reach you to discuss your current status with the company. To recap, you went out on medical leave December 30, 2012. . . . Your leave continued to be extended several times until the now current expected return to work date of August 8, 2013.
As we have previously discussed, under our policies, we offer up to six month[s] of medical leave. . . . In order to determine what further reasonable accommodations we may be able to offer you, we require further information from your medical provider.

Doc. 36-14 at 1. In her letter, Ms. Vawter went on to explain defendant's reasonable accommodation process and enclosed a “Request for Medical Information for Reasonable Accommodation” questionnaire for plaintiff's physician to complete. Dr. Bogener completed the questionnaire on August 9, 2013. Dr. Bogener reported that plaintiff still was restricted to one-handed jobs. Dr. Bogener also stated that plaintiff's work restrictions needed to continue for six more weeks, but that he would reassess plaintiff's status on August 21, 2013.

         After Ms. Vawter received the completed questionnaire from Dr. Bogener, she began determining whether defendant could reasonably accommodate plaintiff. Ms. Vawter reviewed the job functions of an Inspector Packer. Ms. Vawter also assessed whether defendant could accommodate plaintiff by assigning him administrative tasks like copying, but she determined that defendant did not have enough work of this kind to fill an eight-hour job. After reviewing the “Medical Information for Reasonable Accommodation” questionnaire completed by Dr. Bogener, reviewing the written job descriptions and physical demand assessment of the Inspector Packer position, and several consultations with management personnel, Ms. Vawter concluded that defendant could not reasonably accommodate plaintiff. Ms. Vawter did not contact Dr. Bogener directly.

         Ms. Duerksen works in defendant's Human Resources (“HR”) department as a liaison between HR and defendant's employees. She testified in her deposition that, as far as she knew, defendant did not allow any employee to come back to work without a full release from a doctor. Doc. 39-4 at 7. But, she also testified that she believed that, when the accident is work-related, defendant sometimes allowed employees with workers' compensation injuries to work with restrictions. Id. at 25. She also testified that she does not make any decisions about employees' FMLA leave. Id. at 2. Those decisions are made by defendant's HR manager. Id. at 4.

         On August 21, 2013, Dr. Bogener completed another work restrictions note for plaintiff. It stated that plaintiff was still restricted to light duty and one-handed jobs. Ms. Vawter believed that plaintiff did not have a definite return-to-work date because his expected return date had been pushed back repeatedly. She decided to terminate plaintiff's employment. On August 30, 2013, Ms. Vawter sent plaintiff a letter stating the following:

We have received your request for reasonable accommodation. According to the information provided by your physician, you are not able to lift with your left hand, nor are you able to perform manual tasks. Given these limitations we cannot reasonably accommodate these limitations.
Since you are unable to return to work, and we have not heard from you, we will be terminating your employment effective today. Should you becom[e] medically clear and able to work, we encourage you to ...

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